Washington Supreme Court OK's Anti-Discrimination Law Enforcement Against Florist Opposed To Gay Marriage

In an important and wide-ranging 76-page opinion yesterday, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner.  This is the second time the case has been before the Washington Supreme Court.  After the first decision, the U.S. Supreme Court granted certiorari, vacated the state court's judgment and  remanded for further consideration in light of the U.S. Supreme Court's Masterpiece Cakeshop decision. (See prior posting.) Yesterday in State of Washington v. Arlene's Flowers , Inc., (WA Sup. Ct., June 6, 2019), in a unanimous decision, the court concluded that the state adjudicatory bodies involved acted with religious neutrality. It refused to allow the challengers to expand their claims to allege selective enforcement based on religion by the Washington attorney general.

The Washington Supreme Court went on to hold that challengers cited no authority to support their argument that the state's public accommodation law protects proprietors of public accommodations to the same extent as it protects their patrons, and that a balancing test should be used. The court then rejected the florist's free speech claims, saying:

The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. 

The Court also rejected challengers' religious free exercise claims under the U.S. and Washington state constitutions. It concluded that even if the state constitution requires strict scrutiny, that test is met:

[P]ublic accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

Seattle Times reports on the decision. A press release by ADF says the floral shop owners will again ask for review by the U.S. Supreme Court. [Thanks to Tom Rutledge for the lead.]

Feds Settle Suit With Old Order Amish Woman Over Photo In Residency Application

According to the Indy Star, government agencies have settled a lawsuit brought by an Old Order Amish couple.  Under the settlement, the wife will be able to become a permanent U.S. resident without submitting photos of herself in the application for residency. She will also be able to cross the border without photographic identification.

Administration Limits Research Using Fetal Cells

Politico reports:

The Trump administration Wednesday imposed new restrictions on federal use of fetal tissue obtained from abortions, barring government scientists at NIH from doing such research, and canceling an existing HIV research contract with the University of California, San Francisco....

“Promoting the dignity of human life from conception to natural death is one of the very top priorities of President Trump’s administration,” HHS said in a statement. “[NIH internal] research that requires new acquisition of fetal tissue from elective abortions will not be conducted.”

From SSRN:

• Angela Carmella, Catholic Thought on the Common Good: A Place for Establishment Clause Limits to Religious Exercise, (University of St. Thomas Law Journal, Vol. 15, No. 3, 2019).
• Bernd M.J.van der Meulen, The Ultimate Truth. Demons, Dogma, Dominance, Definitions and Democracy - Farewell Address, (European Institute for Food Law Work;ing Paper Series 2019/02).
• Sohail Wahedi, The Health Law Implications of Ritual Circumcisions, (Quinnipiac Health Law Journal, Vol. 22, No. 2, 2019).
• Christen Hammock, Mary Doe ex rel. Satan?: Parody, Religious Liberty, & Reproductive Rights,  Columbia Journal of Gender and Law, Forthcoming).
• Carlo Pedrioli, Pope Francis, Poverty, and the Third Persona, (21 Iowa J. Gender, Race & Just. 367 (2018)).
• Michael Schearer, Ideological Origins of William Penn's 'Holy Experiment', (May 5, 2019).
• Jeremy J. Patrick, Evidence of Absence in the Ruddock Report, (Australian Law Journal, Volume 93, Part 9, 2019).
• Caroline Mala Corbin, Opportunistic Originalism and the Establishment Clause, (Wake Forest Law Review, Vol. 53, 2019).
• William E. Forbath, Constitutionalism, Human Rights and the Genealogy of Jewish Liberalism, (Forthcoming, Law of Strangers: Jewish Lawyering and International Legal Thought in Historical Perspective, Eds. James Loeffler, Moria Paz (Cambridge University Press, 2019)).
• Assaf Likhovski, The Eagle and the Dove: Jewish Law Scholars and Roman Law during the Interwar Period,, (in Pensiero giuridico occidentale e giuristi romani: Eredità e genealogie (Pierre Bonin, Nader Hakim, Fara Nasti and Aldo Schiavone eds., Torino: G. Giappichelli, 2019)).
• Noah Chauvin, Establishment Clause Standards and Standing, (April 29, 2019).

Ecclesiastical Abstention Doctrine Applies To Controversy Over Rental of Catholic Community Center

In Sacred Heart Knanaya Catholic Community Center Building Board v. St. Thomas Syromalabar Diocese of Chicago, 2019 IL App (2d) 180792-U (IL App., May 30, 2019), an Illinois appellate court held that the ecclesiastical abstention doctrine applies to a suit against a Catholic diocese by a Catholic community center board for tortious interference with a business relationship. The diocese barred use of the community center by another Catholic church that had contracted to rent the Center for a Spanish Latin Rite Mass.

NOTICE TO READERS REGARDING PUBLICATION SCHEDULE

FROM MAY 23 TO JUNE 10, POSTINGS ON RELIGIOUS CLAUSE BLOG WILL BE INTERMITTENT AND SPORADIC. LOOK FOR MORE REGULAR POSTINGS TO RESUME ON JUNE 11.

Supreme Court Denies Cert In Challenge To Bus Ad Restrictions

The U.S. Supreme Court today denied review in American Freedom Defense Initiative v. Washington Metropolitan Transit Authority, (Docket No. 18-1000, certiorari denied 6/3/2019) (Order List).  In the case, the D.C. Circuit Court of Appeals remanded  a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that decry supposed Sharia adherent Islamists who want to enforce Islamic blasphemy laws in the United States. (See prior posting.)

Supreme Court Denies Stay Sought By Presbyterian Church In Defamation Suit

Today the U.S. Supreme Court in Presbyterian Church v. Edwards, (Docket No. 18A1126, June 3, 2019) (Order List) denied an application to stay enforcement while a petition for certiorari is filed of an order by the Kentucky Supreme Court (see prior posting).  The Kentucky Supreme Court allowed discovery to proceed in a defamation suit against the Presbyterian Church to the extent necessary to determine if the church is entitled to ecclesiastical immunity. The Church claims that the ecclesiastical abstention doctrine precludes this.

Supreme Court Says Title VII Charge-Filing Prerequisite Is Not Jurisdictional

In Fort Bend County v. Davis, (US Sup. Ct., June 3, 2019) today the U.S. Supreme Court in a Title VII religious discrimination case held unanimously that the statutory requirement that an EEOC claim be filed before commencing suit in court is not jurisdictional.  Therefore defendant may forfeit this defense through undue delay in asserting it. Courthouse News Service reports on the decision.

Tax Court Denies Deduction For Evangelist's Expenses

In Oliveri v. Commissioner (US Tax Ct., May 28, 2019), the U.S. Tax Court rejected claims by a Catholic evangelist that the disallowance of a charitable deduction for many of his evangelistic activities violated his rights under the First Amendment and RFRA:

Petitioner contends that respondent is characterizing his evangelism as if it were not a religious activity and that respondent’s characterization violates the First Amendment. Petitioner mischaracterizes respondent’s position, which is that petitioner’s expenses for evangelistic activities are not deductible as charitable contributions under section 170, not that they are not religious activities. Not all religious activities are services “to or for the use of” a religious organization for purposes of section 170....

Petitioner contends that disallowance of his section 170 deductions violates his right to the free exercise of religion by placing a substantial burden on his evangelization, in that it would result in his having less money to evangelize. We disagree. In Hernandez v. Commissioner, 490 U.S. 680, 699 (1989), the Supreme Court said that “we need not decide whether the burden of disallowing the §170 deduction is a substantial one, for our decision in Lee establishes that even a substantial burden would be justified by the ‘broad public interest in maintaining as ound tax system’”. 

The Tax Court also rejected petitioner's claim that "three audits of his Federal income tax returns within 10 years resulted in excessive Government entanglement with his exercise of religion."

Maine Ends Vaccination Exemptions

Last week, Maine's governor signed into law a bill (full text) eliminating religious and philosophical exemptions to vaccination requirements.  ABC13 reports on the new law. [Thanks to Tom Rutledge for the lead.]

Certiorari Denied In Challenge To Kaporos Ritual

The U.S. Supreme Court on Monday denied review in Alliance to End Chickens as Kaporos v. New York City Police Department, (Docket No. 18-1322, certiorari denied 5/28/2019). (Order List.)  In the case, New York state's highest court agreed that a petition for a writ of mandamus to require enforcement of public health and animal cruelty laws against the Jewish pre-Yom Kippur ritual of kaporos should be denied. (See prior posting).

Supreme Court Upholds Part of Indiana Abortion Law; Denies Review On Injunction For Part

The U.S. Supreme Court Monday in Box v. Planned Parenthood of Indiana and Kentucky, (May 28, 2019), handed down a per curiam opinion on a petition for certiorari before briefing on the merits, but with several amicus briefs having been filed, The court upheld Indiana's law prohibiting fetal remains from abortions being disposed of as medical waste. However the Court denied certiorari as to Indiana's law prohibiting sex-, race- or disability selective abortions, leaving in effect the permanent injuinction approved by the 7th Circuit. (Full text of 7th Circuit opinion.) Justice Thomas filed a separate concurring opinion, but wrote at length criticizing the use of abortion for eugenics purposes. Justices Sotomayor and Ginsburg would have denied review on both issues, with Justice Ginsburg writing a short opinion expressing her views. AP reports on the decision.

Michigan Charges Five Priests On Criminal Sexual Conduct

Michigan Attorney General Dana Nessel last week announced:

Five men who were priests have been charged with a total of 21 counts of criminal sexual conduct, Michigan Attorney General Dana Nessel announced at a news conference this morning in Lansing.  Four of the men have been arrested; one awaits extradition in India. A sixth Michigan priest is facing an administrative complaint and his license as a professional educationally limited counselor has been summarily suspended by the Michigan Department of Licensing and Regulatory Affairs (LARA). 

Proposed HHS Rule Would Eliminate Transgender Protections

Last week the Department oj Health and Human Services issued a proposed rule (full text) that would eliminate protections against discrimination in health care where the discrimination is on the basis of gender identity or termination of pregnancy.  Health Leaders reports on the proposed rule.

Russian Appeals Court Upholds Sentence of Jehovah's Witness

Moscow Times reports today that a 3-judge panel of a Russian appellate court has upheld the 6-year sentence of a Danish Jehovah's Witness adherent who was convicted of organizing a banned "extremist group".  According to the Times:

Armed police detained Dennis Christensen, a builder, in May 2017 at a prayer meeting in Oryol, some 200 miles (320 kilometers) south of Moscow after a court in the region outlawed the local Jehovah's Witnesses a year earlier.

Priest Sexual Assault Case Settled

The Fresno Bee this week reports on the settlement of a claim by a woman that she was sexually assaulted by a Catholic priest:

A Woodland woman has received a $200,000 settlement from the Sacramento Catholic Diocese and the current pastor of a Woodland church after filing a lawsuit in 2017 accusing a former priest of sexual assault and claiming church officials largely ignored her pleas for help.

Senior Community Management Sued Over Ban on Bible Study Groups and Public Prayer

A lawsuit was filed this week in a Virginia federal district court by a retired pastor and his wife against a senior living community where they lived.  The complaint (full text) in Hauge v. Community Realty Company, Inc., (ED VA, filed 5/21/2019), alleges that the community's management discriminated against plaintiffs on the basis of religion by acceding to demands of other residents to bar plaintiffs' followers from publicly saying grace before their meals, and prohibiting plaintiffs from hosting Bible Study anywhere in the living complex.  The suit contends that management's actions violated federal and state fair housing laws.  First Liberty issued a press release announcing the filing of the lawsuit.

States and Cities Sue Administration Over Expanded Health Care Conscience Rules

Yesterday 19 states, the District of Columbia as well as New York City, Chicago and Cook County, Illinois together filed suit in a New York federal district court challenging rules recently adopted by the Department of Health and Human Services (see prior posting) expanding the protection of conscience rights of health care providers. The rules were formally published in the Federal Register yesterday. The 80-page complaint (full text) in State of New York v. U.S. Department of Health and Human Services, (SD NY, filed 5/21/2019) alleges in part:

This lawsuit challenges a U.S. Department of Health and Human Services regulation that – in an unprecedented and unlawful expansion of nearly thirty federal statutory provisions – would compel the Plaintiff States and local jurisdictions to grant to individual health providers the categorical right to deny lawful and medically necessary treatment, services, and information to patients, based on the provider’s own personal views.... [I]t will undermine the Plaintiffs’ ability to administer their health care systems and deliver patient care effectively and efficiently.

[T]he Final Rule seeks to coerce the Plaintiffs to comply with the Department’s overbroad application of federal law by subjecting the Plaintiffs to ... denial of potentially all federal health care funds if the Department determines... that the Plaintiffs... have failed to comply with the Final Rule... [T]his financial exposure could amount to hundreds of billions of dollars each year.

...The Final Rule far exceeds in scope and substance the underlying federal health care statutes...; conflicts with federal statutes regarding access to health care, informed consent, the provision of emergency medical services, and religious accommodations; violates constitutional safeguards that assign the spending power to Congress and prohibit the Executive Branch from coercing states to implement preferred federal policies; and violates the Establishment Clause by imposing a categorical requirement that Plaintiffs accommodate the religious objections of their employees, whatever the cost.

New York's Attorney General issued a press release announcing the law suit.

Separately, the state of California filed a similar challenge. The complaint (full text) in State of California v. Azar. (ND CA, filed 5/21/2019) is discussed in this press release from the California Attorney General.

3rd Circuit Hears Arguments In Contraceptive Mandate Case

Yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Commonwealth of Pennsylvania v. President of the United States. In the case, a Pennsylvania federal district court granted a nationwide preliminary injunction  against enforcement of the Interim Final Rules issued by the Trump Administration that expanded exemptions from the Affordable Care Act's contraceptive coverage mandate for those with religious or moral objections. (See prior posting.) Courthouse News Service reports on the oral arguments.